The People v. Merritt CA3

Filed 9/16/13 P. v. Merritt CA3

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C069512

Plaintiff and Respondent, (Super. Ct. No. 09F03812)

v.

DEVIN MICHAEL MERRITT,

Defendant and Appellant.

Defendant Devin Michael Merritt and a codefendant were charged with felony assault on a fellow inmate. Defendant was also alleged to have eight prior convictions within the meaning of the three strikes law.

1

A jury found defendant guilty as charged. The trial court found the allegations of all eight prior convictions to be true and denied defendant‟s Romero1 motion to strike seven of those priors. Defendant makes two arguments on appeal. First, he argues the trial court‟s sentence violates the United States Constitution.2 Second, he avers the trial court‟s “refusal to strike [his] prior qualifying „strike‟ convictions constituted an abuse of discretion.” Because both arguments lack merit, we affirm. FACTUAL AND PROCEDURAL BACKGROUND In February 2009 defendant and another inmate were playing handball in a concrete exercise yard when the ball flew over a high wall. While defendant came to the guard on duty to ask for another ball, his handball partner proceeded to assault a third inmate out of view of the guard. When the guard finally realized what was going on, defendant had already joined the fray. The incident lasted only a few seconds. Defendant was charged with assault on a prison inmate. At trial he testified that he had been trying to stop the fight rather than participate in it. The jury found him guilty despite his testimony. Before sentencing, defendant made a Romero motion requesting the court strike all but one of his eight prior felonies. After reviewing the parties‟ papers, as well as the probation report, the trial court denied the motion and sentenced defendant to a total of 30 years to life in prison consecutive to the 48-year term he was already serving. He made no constitutional objection regarding the sentence.